A few weeks ago, our legal analyst Ernie Canning warned how the U.S. Supreme Court's pending decision on whether or not to hear the ACLU's challenge to the Wisconsin GOP Photo ID voting law might be the last chance before the 2016 Presidential elections to determine the Constitutionality of such laws.

On Monday, the Supreme Court decided not to grant cert in the WI challenge in the Frank v. Walker case. The decision is not a ruling on the merits of the case or the Constitutionality of the law. It simply means that, for now, there were not four votes on the Court to hear the ACLU's challenge at this time.

It also means that, barring further court action or a quick decision on a similar law out of another state, polling place Photo ID restrictions on voters will be allowed in the Badger State in 2016. That, despite the fact that the federal trial court found, when striking down the law as unconstitutional and a violation of Section 2 of the Voting Rights Act last year, that the new Republican-enacted law may serve to bar some 300,000 disproportionately Democratic-leaning and already lawfully registered voters from casting a ballot in the state's Presidential election.

There is also more than a bit of irony in this matter, in that, after U.S. District Court Judge Lynn Adelman soundly rejected the law in 2014 --- finding that "evidence adduced at trial demonstrates" WI's Act 23 "disproportionately impacts Black and Latino voters" and that the law would "prevent more legitimate votes from being cast than fraudulent votes" --- the 7th Circuit Court of Appeals deadlocked (disingenously) 5 to 5 on whether to stay the original ruling. That deadlock meant the stay would be granted and the WI law would be allowed, barring further court challenges, despite the fact that 6 federal judges had voted to strike down the law, while just 5 had voted in its favor. To make matters worse, Act 23 had also been struck down previously in state court as a violation of the state constitution as well. Nonetheless, in this matter, a minority of judges successfully ruled against the majority.

All of that, despite a blistering dissent filed in last year's 7th Circuit Court WI decision by against the law (and all such laws) from revered conservative 7th Court of Appeals Judge Richard Posner. Posner's original ruling in favor of a Photo ID restriction law in Crawford v. Marion County, Indiana, was the basis of the first such case to be heard by the U.S. Supreme Court, upholding Indiana's Photo ID law in 2008. So his unambiguous reversal on the issue, now that we know much more about such laws, was noteworthy and, opponents of the law had hoped, convincing to the Supremes who have, for many years, favorably cited the legal scholar's opinions.

Though the 7th Circuit's decision to temporarily stay the original ruling striking down the law was later vacated by the U.S. Supreme Court last year --- on the basis that the stay was made too close to the election --- the discriminatory law is now back in place in the state. The refusal by the Court to grant cert this weeks means that it will likely remain in place as the next Presidential election begins.

Some watching these matters closely, however, believe that Monday's decision by SCOTUS to not hear the Wisconsin case may ultimately be a good thing, perhaps "a blessing in disguise"...

Writing at his Election Law Blog, UC Irvine election law professor Rick Hasen noted that the ACLU's attempt to have the matter heard before the U.S. Supreme Court had "divided the civil rights community":

As I noted last week, those who hoped the Supreme Court would hear the case were betting that Chief Justice Roberts or Justice Kennedy were going to have the same kind of epiphany that Judge Posner of the 7th Circuit had. Judge Posner had voted to uphold Indiana's voter id law back in the mid-2000s when it was challenged. Judge Posner saw the requirement as no big deal. But by last year, Judge Posner was writing that such laws have now been generally recognized as a means of suppressing likely Democratic votes than as a means of fraud prevention. (The evidence that such laws deter any significant amount of impersonation voter fraud is thin indeed.) But it is not clear that Kennedy and Roberts, the conservative Justices likely in the middle of the Court on this issue have had a similar religious conversion on the issue. The four liberals could have forced a hearing in this case (by voting to grant cert) but they must not have been confident of the religious conversion either.

"Rick could well be right about the reasons the four liberal justices did not insist on granting cert," Canning told us on Monday, "but if he is, they've gambled with the outcome of the 2016 election."

It should also be noted here that WI Gov. Scott Walker, one of the current front-runners for the 2016 GOP nomination, has been an ardent supporter of the state's attempt to institute polling place Photo ID restrictions from day one. This change to voting laws in the Badger State will likely be good for both him and the Republican Party in general. President Obama carried Wisconsin, a swing state, in 2012 by slightly more than 200,000 votes. The disproportionate disenfranchisement of 300,000 otherwise lawfully registered voters could well serve to shift Wisconsin and its 10 electoral votes to the GOP column in 2016.

In the meantime, Hasen notes that the DoJ has done little to support the WI challenge, focusing instead on similar laws enacted by Republicans in North Carolina and, in particular, Texas, where a federal trial court also struck down the law. But, in the Texas case, in addition to finding the law unconstitutional and a violation of the Voting Rights Act, the U.S. District Court judge there also found that state's law to have been purposely discriminatory:

The DoJ, writes Hasen, is "hoping those cases will be better vehicles for getting voter id laws struck down."

But relying on Texas to ultimately help Wisconsin is risky. In the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas's passage of the voter id law was the product of intentional racial discrimination. That's a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas's voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what's allowed and forbidden.

Had the Court agreed to hear the Wisconsin case, it is possible it would have read Section 2 of the Voting Rights Act even more narrowly in cases of vote denial, as well as make bad law on the scope of the equal protection clause. In this way, the Court's refusal to hear Wisconsin's voter id case may be a blessing in disguise. As I've long argued, the best way for liberals to cut their losses is to stay out of the Supreme Court when possible. Things could have been worse if the Court took Wisconsin than if they didn't. And if you trust Justice Ginsburg, trust her in not voting to grant cert in this case.

As Canning explained earlier this month when describing why Wisconsin's Frank v. Walker case might be the last chance for the Supremes to find all such laws unconstitutional before they might skew the results of the 2016 elections by barring hundreds of thousands of legal voters from the polls, the federal cases in both Texas and North Carolina are unlikely to work their way up to the high court in time to be stopped before votes are cast in 2016.

"In order for there to be clear resolution on these types of laws prior to the beginning of the 2016 primary and general election cycle, the Court would need to look at Wisconsin's case now, rather than wait for similar laws in other states to make their way up through the lower courts," Canning noted in his recent article.

As the ACLU wrote in its (now rejected) brief to the Supreme Court: "Wisconsin admits that this case is 'procedurally far ahead of the cases from Texas and North Carolina'...In Texas, Fifth Circuit briefing will continue through mid-March, followed by oral argument, a panel decision, and possibly a petition for rehearing...North Carolina is even farther behind; trial is not scheduled to begin until July...There is no guarantee that this Court could consider either case before the end of the October 2015 Term."

That's important, given that, as we learned in 2014, the Supremes are now regularly invoking what law professor Hasen describes as the Purcell Principle. That is, they won't allow election laws to be changed just prior to elections --- even where lower courts have found that the law in question might discriminate against hundreds of thousands of voters. That is why the Court blocked WI's GOP Photo ID restriction from taking effect in 2014, but also allowed the TX GOP Photo ID law to be implemented despite the trial court determining that 600,000 legally registered voters could be disenfranchised by it. In the case of the former, allowing the law to be implemented in WI would have amounted to what the Court regarded as a last minute change. In the case of the latter, stopping implementation of the law in TX would have presented a last minute change.

Therefore, as Republicans in both Texas and North Carolina do their best to slow-walk the pending challenges to their Photo ID law, as Canning explained last December, the chances that neither case makes it to the Supreme Court in time to be struck down before 2016 --- even if the lower courts find the laws unconstitutionally discriminatory --- continue to increase.

That's good news for Republican candidates, but its very bad news for American voters and elections.

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Recall that Justice Anthony Kennedy remarked in orals of Shelby the following (and this was not a Devil's advocate line:

Justice Anthony Kennedy: Well, I --- I do think the evidence is very clear that Section --- that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965.

No doubt about that.

Solicitor General Donald B. Verrilli Jr: And I think it remains--
Justice Anthony Kennedy: But with --- with a modern understanding of --- of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it's not clear --- and --- and with the fact that the Government itself can commence these suits, it's not clear to me that there's that much difference in a Section 2 suit now and preclearance.

I may be wrong about that.

I don't have statistics for it.

That's why we're asking.

We know what happened to Sections 4 and 5, if the same logic is followed in a hearing involving Section 2, one can see possibly why Wisconsin prospective voters were sacrificed out of concern of an adverse decision of Frank v. Walker involving Section 2.

As you noted, Rick Hasen criticized the DoJ for failing to file an amicus brief. Hasen noted, in an update, that his critique drew a response from Sasha Samberg-Champion, a former member of the DoJ’s Civil Rights Division, who asserted that, as a matter of policy, the Solicitor General "virtually never files in support of someone else’s cert petition (as opposed to filing its own petition)."

Hasen responded:

Interesting. Though my sense is that this case is of such importance that DOJ would have weighed in if the government thought this case was likely winnable.

The issue is not, in my opinion, whether the DoJ should have filed an amicus brief --- especially since the current U.S. Solicitor General may not be the sharpest tool in the shed.

Recall that, in early 2012, shortly after Frank v. Walker and a related case, Jones v. Deininger, were first filed, I argued that, because Section 5 was then under legal assault, the DoJ should directly intervene in Section 2 legal challenges to photo ID laws.

The likelihood of success in obtaining cert would have been greatly enhanced if the DoJ had intervened as a party plaintiff in the original proceedings. The request that the matter be heard by the Supreme Court would have come directly from the federal government.

Authoritarians, the extreme right/fascists, only make up between 20-25% of a greater population that are more fair minded, democratically minded. See: http://members.shaw.ca/j...ob/TheAuthoritarians.pdf
The Authoritarians by Dr Altemeyer
So, authoritarians need to lie, cheat, steal and worse in order to win power. When anonymously surveyed authoritarians self-describe as hierarchical, Machiavellian, aggressive, power seeking, amoral, and comfortable with inequity. They have to cheat in many different ways to overcome their small numbers and force their horrible leadership on others. Therefore:

The vital importance of the CODE RED Kickstarter campaign is illustrated by the outrageous failure of the mainstream media, law enforcement, and supposed experts from both major parties to probe electronic voting fraud. The media failures arise from self-censorship, cowardice and conflicts of interest, not from lack of evidence, and thus underscore especially the need for independent and non-partisan public education.
-Andrew Kreig, author, "Presidential Puppetry"

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In 2000, Al Gore won the 540,000 recorded votes (48.4-47.9%). But the unadjusted state exit polls (58,000 respondents) indicated he won by 50.8-44.4%, a 6 million vote margin. There were nearly 6 million uncounted votes. The True Vote Model had him winning by 51.5-44.7%. But the Supreme Court awarded the election to Bush (271-267 EV). In Florida, 185,000 ballots were uncounted. The following states flipped from Gore in the exit poll to Bush in the recorded vote: AL AR AZ CO FL GA MO NC TN TX VA. Gore would have won the election if he captured just one of the states. Democracy died in this election. (Meaning Al Gore won all those states, including Texas)
snip

The bedrock of the evidence derives from this undisputed fact: Final national and state exit polls are always forced to match the recorded vote – even if doing so requires an impossible turnout of prior election voters and implausible vote shares. All demographic categories are adjusted to conform to the recorded vote. To use these forced final exit polls as the basis for election research is unscientific and irresponsible. The research is based on the bogus premise that the recorded vote is sacrosanct and represents how people actually voted. Nothing can be further from the truth.

It is often stated that exit polls were very accurate in elections prior to 2004 but have deviated sharply from the recorded vote since. That is a misconception. The UNADJUSTED exit polls have ALWAYS been accurate and closely matched the True Vote in 1988-2008. A comparison of ADJUSTED, PUBLISHED exit polls in elections prior to 2004 and PRELIMINARY exit polls since then is like comparing apples to oranges. The adjusted, published exit polls have always exactly matched the fraudulent RECORDED vote because they have been forced to do so. That's why they APPEAR to have been accurate. The RECORDED vote has deviated from the TRUE VOTE in EVERY election since 1968 –always favoring the Republicans.
.........

Lynn Landes
The Case For Open Voting
Democracy demands transparency, not trust -Sign up and be counted

There is no transparency to our current voting system. Congress has legalized election fraud by allowing, if not mandating, non-transparent voting systems that prohibit direct access to a paper ballot and meaningful public oversight....
snip

Making matters worse, our public voting system has been privatized and outsourced to a handful of domestic, foreign, and multi-national corporations, most of whom have close ties to the right wing of the Republican Party. Just two companies, ES&S and Diebold, started by two brothers, Bob and Todd Urosevich, electronically process (using touchscreen machines or optical scanners), 80% of all votes. Their employees are in a perfect position to rig elections nation-wide. And evidence is mounting that elections in America have been computer programmed to prefer conservative candidates of both political parties. (those machines are in primaries so start there with real evidence)